Case Studies: The ECJ Decisions on Golden Shares
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Moves toward privatization within the EU have created a common mechanism for the States to retain control over the privatized company in strategic sectors such as energy, gas, petroleum, telecommunication, airport, post office. The European Commission has challenged the use of golden shares and has brought action for infringement against the EU Member States before the ECJ. The ECJ’s decisions on golden shares reveal some conflicting interests between the EU’s objective of European integration through internal market guaranteed by the four fundamental freedoms and the Member States’ protectionism of their domestic companies from foreign competitors. The ECJ has confirmed the European Commission’s position against golden shares which deter cross-border investments and effective and competitive economic market as not in compliance with the free movement of capital of Article 63 TFEU and freedom of establishment of Article 49 TFEU. The ECJ, however, opens some possibility that national restrictive measures may be justified under public interest grounds in strategic sectors. To survive the ECJ’s strict scrutiny, however, restrictive measures must have a public interest or overriding requirements of the general interest proven by “a genuine and sufficiently serious threat to a fundamental interest of society” as well as by specific, precise, and objective criteria. This study examined, reviewed, and analyzed the key ECJ decisions on golden shares and made some assumptions about the recently filed case challenging the Greek legislation pending before the ECJ. Korea has also discussed the privatization of the Incheon international airport by selling shares to private investors subject to some limitations, and the adoption
Abstract
Moves toward privatization within the EU have created a common mechanism for the States to retain control over the privatized company in strategic sectors such as energy, gas, petroleum, telecommunication, airport, post office. The European Commission has challenged the use of golden shares and has brought action for infringement against the EU Member States before the ECJ. The ECJ’s decisions on golden shares reveal some conflicting interests between the EU’s objective of European integration through internal market guaranteed by the four fundamental freedoms and the Member States’ protectionism of their domestic companies from foreign competitors. The ECJ has confirmed the European Commission’s position against golden shares which deter cross-border investments and effective and competitive economic market as not in compliance with the free movement of capital of Article 63 TFEU and freedom of establishment of Article 49 TFEU. The ECJ, however, opens some possibility that national restrictive measures may be justified under public interest grounds in strategic sectors. To survive the ECJ’s strict scrutiny, however, restrictive measures must have a public interest or overriding requirements of the general interest proven by “a genuine and sufficiently serious threat to a fundamental interest of society” as well as by specific, precise, and objective criteria. This study examined, reviewed, and analyzed the key ECJ decisions on golden shares and made some assumptions about the recently filed case challenging the Greek legislation pending before the ECJ. Korea has also discussed the privatization of the Incheon international airport by selling shares to private investors subject to some limitations, and the adoption
참고문헌 (26)
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- "Case C-483", 99, Commission v. France, 2002
- "Case C-503", 99, Commission v. Belgium, 2002
- "Case C-463", 00, Commission v. Spain, 2003
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